In re Isaiah B.

Mother
appeals the termination of her parental rights on grounds of
(1) abandonment by failure to establish a suitable home; (2)
persistence of conditions; (3) substantial noncompliance with
permanency plans; and (4) failure to manifest a willingness
and ability to assume custody of the child. We reverse the
trial court's ruling with regard to substantial
noncompliance with permanency plans, but affirm the remaining
grounds, as well as the trial court's determination that
termination is in the child's best interest. The
termination of Mother's parental rights is therefore
affirmed.

Tenn.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Reversed in Part; Affirmed in Part; and
Remanded

On
November 5, 2015, the child at issue, Isaiah B.
("Isaiah" or "the child"), was removed
from the custody of his parents, Angela A.B.
("Mother") and Phillip B. ("Father") by
the Tennessee Department of Children's Services
("DCS"). This appeal concerns only Mother. The
family had previously been in contact with DCS following
their move to Tennessee from another state due to concerns of
bruising on Isaiah resulting in multiple trips to the
emergency room, domestic violence, and drug use in the home.
On the day Isaiah was removed, Mother went into premature
labor with another child.[1] Due to the circumstances, Mother was
forced to allow Isaiah to be supervised by paternal
grandfather and Father; it appears that Mother also called
DCS and maternal grandmother to retrieve Isaiah. Although
maternal grandmother appears to have retrieved Isaiah, DCS
nevertheless arrived at the home of paternal grandfather to
inspect its condition. According to the DCS worker who
investigated, the home was littered with beer cans and it was
clear that paternal grandfather had been drinking heavily.
DCS therefore retrieved Isaiah from maternal grandmother and
subsequently placed the child in foster care.[2] Mother remained
in the hospital for several days following the birth.
Eventually, Isaiah was adjudicated dependent and neglected on
December 30, 2015, after the juvenile court found that Mother
used marijuana while pregnant, and Father stipulated that the
parties were violating an order of protection by living
together. At the time of the removal, Isaiah was nine months
old.

Following
the removal of the child, DCS formulated three permanency
plans requiring both Mother and Father to complete several
action steps. All three plans were ratified by the juvenile
court. The first plan, created on November 23, 2015, required
Mother to: (1) maintain employment; (2) complete a parenting
assessment and follow recommendations; (3) complete an
alcohol and drug assessment and follow recommendations; (4)
maintain safe and stable housing and not allow anyone to
reside with her unless they were on the lease; and (5)
complete a mental health intake and follow recommendations.
Father was required to complete similar tasks. A second
permanency plan was created on January 11, 2016, with similar
requirements. On July 14, 2016, a third permanency plan was
created, which required Mother to: (1) provide DCS with
employment verification; (2) complete a dual diagnosis
program recommended by Frontier Health; (3) maintain safe and
stable housing and ensure that no one else resides in the
home without a DCS background check; (4) complete a
comprehensive psychological assessment and follow
recommendations; and (5) if Mother and Father reside
together, each must demonstrate the ability to be drug and
domestic violence free. As detailed infra, Mother
completed some of the plan requirements; Father largely
failed to complete any of the plan requirements.

Both
parents were drug tested throughout the pendency of these
proceedings. Mother failed several drug tests initially,
typically for marijuana. Mother claimed that her drug use at
the time of Isaiah's removal was recommended by a
physician due to her difficult pregnancy and that thereafter
she used marijuana due to grief. Mother began to consistently
pass all drug tests on June 23, 2016. Father, however,
generally failed every drug test given to him, often testing
positive for marijuana and "benzoes."[3] Father last
appeared for a drug screening in June 2016, after which he
refused to maintain contact with DCS to take drug screenings.
Father became involved with DCS again in February 2017, at
which time he admitted he was using methamphetamine. On
February 17, 2017, Father failed a drug test for marijuana
only. Father again admitted to using methamphetamine in April
2017.

Mother
was also provided supervised visitation with the child once a
week; Mother attended every visitation, although she was
often late. There was no dispute that Mother's
interactions with the child during the visitations were
appropriate and that Mother and the child had a bond.

Mother
completed every assessment required of her, including a
parenting assessment, an alcohol and drug assessment, and a
psychological assessment. It did appear, however, that Mother
was dishonest in one assessment when she informed a provider
that she had passed all drug screenings; at the time, Mother
had failed all drug screenings. There was also some dispute
as to whether Mother had completed all of the recommendations
from the assessments. For example, when one assessment
recommended that Mother enter intensive outpatient drug and
alcohol treatment, Mother obtained another assessment from a
different provider that recommended a less intensive
treatment. Mother's assessments also recommended twice
monthly counseling; prior to the filing of the termination
petition, Mother attended counseling only sporadically.
Following the filing of the termination petition, Mother
began attending more consistently, after her counselor
recommended that the visits decrease to once per month to
accommodate Mother's work schedule. It was undisputed
that Mother worked and paid appropriate child support for the
child.

On
December 5, 2016, DCS filed a petition to terminate
Mother's and Father's parental rights. With regard to
Mother, the petition alleged four grounds: (1) abandonment by
failure to establish a suitable home; (2) persistence of
conditions; (3) substantial noncompliance with permanency
plans; and (4) failure to manifest a willingness and ability
to assume custody of the child.[4] A trial was held on July 7,
2017.[5]Mother was present. Father did not appear
at trial and his attorney orally moved to withdraw from the
representation; the trial court denied the attorney's
motion. Several DCS employees testified as to the reasonable
efforts made by DCS in the months following the removal of
the children. These efforts included referring Mother to
various assessments and services that DCS paid for, providing
drug screenings, and supervising Mother's visitation. In
contrast, the DCS worker involved at that time testified that
Mother made no similar efforts during the four months
following removal, as Mother consistently failed drug tests
during this time frame, failed to follow the recommendations
of the assessments, sporadically attended counseling, and was
unable to maintain a safe and stable home.

Indeed,
much of the testimony at trial concerned Mother's effort
to establish a safe and stable home. DCS workers testified
that Mother was repeatedly informed that so long as she
resided with Father, his noncompliance would prevent
reunification with her child. At least one DCS worker
involved with a later-born child, [6] however, told Mother to work
together with Father to parent the child. Although Mother
maintained at trial that she had long since removed Father
from her life, even going so far as to obtain an order of
protection against Father and make plans to initiate a
divorce, evidence presented by DCS indicated that Mother and
Father had not terminated their relationship. For example,
Mother and Father married in February 2016 and had another
child together in March 2017. At trial, both a DCS worker and
the child's foster mother, Rhonda P. ("Foster
Mother") testified that Father was seen dropping Mother
off for visitations and/or kissing her as late as April 20,
2017, after Mother claimed that they were no longer together
and an order of protection was in place. Although Mother
claimed she was only relying on Father for transportation,
the testimony indicated that Father was driving Mother's
car in some instances. During some scheduled home visits to
Mother's various residences, Father was also seen in
Mother's home in pajamas.

The
domestic violence between the parties also did not stop
following the removal, despite the fact that that
Mother's counseling sessions included therapy to address
the domestic violence issues.[7] According one DCS worker,

[O]n July the 22nd of 2016 [Mother] took an Order of
Protection out against [Father] due to him being physically
abusive. She reported that he had choked and slapped, pushed
her and drawn weapons out on her. She said that he reported
to her he was going to kill her multiple times; that he had
also tried to choke her with her broken phone. She reported
that he's using all kinds of drugs, and he always tries
to kill her. Then on July 27th she dismissed the Order of
Protection on the condition that [Father] would continue
counseling and GED classes.

Despite
Mother's apparent faith in Father, Father was arrested in
March 2017 for domestic violence against Mother. Mother
claimed that she allowed Father in her home to assist her in
caring for her new child, after having been told to work with
Father by the DCS worker involved with her newborn child.
Mother claimed, however, that Father did not reside in the
home at that time. On the date of the incident, Mother called
the police when Father became violent because he could not
find his belt. Following her initial call, Mother called the
police again to stop their arrival. Both Mother and the
newborn child were in the home during Father's outburst;
that child was later removed and placed in the foster home
with the child at issue in this case.

Following
his arrest in March 2017, a DCS worker testified that Father
admitted to DCS that the couple had been living together
since February 2017 despite Mother's claims to the
contrary.[8] When DCS attempted to persuade Mother to
sign an immediate protection agreement to allow her to obtain
custody of the child so long as Father stayed out of the
home, Mother allegedly indicated that she would sign the
agreement but would not abide by it. Mother did, however,
obtain an order of protection against Father following this
incident.

A
second domestic violence incident occurred at Mother's
home on April 25, 2017. According to the police report on the
incident, Father arrived at Mother's home uninvited and
took some of his purported belongings, pushing and
threatening Mother and damaging her cell phone in the
process. While Father was in jail due to the domestic
violence charges, Mother spoke to him by telephone several
times. Mother also admitted that she placed the funds in
Father's account for the telephone calls. Of the multiple
telephone calls, two were played during trial. The phone
calls, recorded on various dates in June 2017, included the
following:

[Mother]: Okay. I mean I do have to do the divorce paper.
[Father], that doesn't mean anything. It's just
something to get our kids back. [Father]: It sure does.

[Mother]: No, it doesn't. [Father], we are about to lose
[the child] forever. We are about to lose him forever. So
anything that gives me a chance to keep him, all we've
got to do is do this for a couple of months until after the
termination hearing and everything, and then we can do
whatever the hell we want with DCS (inaudible) one week every
month.

[Mother]: And I'm telling you the Number 1 thing that was
wrong with our relationship was because I kept catching you
cheating. I didn't give a shit about the drugs and shit.
I just kept catching you cheating, and you wouldn't do
nothing to help get the kids back. I mean all you had to do
was quit weed for a month, a couple months.

[Father]: It don't matter, [Mother]. Get a divorce so you
can leave me alone.

[Mother]: I don't want to get a divorce until we -- but
I'm doing it to get my kids, and then after [Father],
listen. That's just paper. Regardless, we will always be
married, and I will always love you. Always. And when you do
get out, I want you to prove to me you're going to be
good.

[Father]: I'm not good enough, [Mother].

[Mother]: Yes, you are. You will be getting out.

***

[Father]: Well, I won't be talking to you no more about
it.

[Mother]: Yeah. Call me, please, please, please. Please call
me.

[Father]: Okay.

[Mother]: Please, [Father].

[Father]: I love you. That's all I'm going to say to
you.

[Mother]: I love you, too, Baby. I'm going to try to get
you out. (Inaudible).

[Father]: All I want is this shit dropped. That's it.

[Mother]: The State won't let me do it. I tried. I tried.

[Father]: I love you. Okay. I love you. I just want to get my
lawyer.

[Mother]: Get you a lawyer. That's what you need to do,
but first, what plea they'll give you.

[Father]: I'll let you go. I love you. I don't know
if I'll call you anymore or not.

[Mother]: Please call me.

[Father]: Call my dad and tell him call my dad and tell him
to come down here and see...

[Mother]: I love you.

A second phone call contained the following exchanges:

[Father]: I might get charged with the Order of Protection,
too, but you ain't?

[Mother]: I can't drop it, [Father].They will take the
kids, and they will be gone forever.

[Father]: Whatever.

[Mother]: Please don't hang up on me because I just spend
the last $10.00 out of my card.

[Mother]: You wouldn't have been there if you didn't
try to hurt me. You tried to kill me, [Father]. You tried to
kill me. I mean do you not ever think that once -- at a
certain point in time that you have to pay for your back?

* * *

[Mother]: I'm not keeping you in there. It's just if
I -- I love my children, but that's fine. I forgot. You
didn't give two craps about them anyways. So it
doesn't bother you that that would mean that they would
be gone forever? You promised me you were going to change.
[Father]: I can't change like stuff that's gone
wrong.

[Mother]: Yeah. But the way you're treating me right now.
That should show me that you're going to change. I
don't even know if a relationship between us is going to
continue to work anyway because you're not going to
change. [Father]: Whatever.

* * *

[Mother]: For [o]ne, DCS is wanting me to also get a divorce.
[Father]: Whatever. I don't care. Just do whatever you
want to do. [Mother]: No. Don't talk to me, [Father]. I
do love you. I do, and I do want to be with you, and I want
our relationship to work, but what you're doing is not
helping anything.

[Mother]: I'm not lying to you. I'm not lying,
[Father]. I'm trying to get you to realize what you did,
and you still haven't figured it out. You were trying to
kill me with a dog leash at Johnny's. Now tell me if that
wasn't out of control. Me and you fist fought in
Johnny's yard because you wouldn't stop talking to
chicks. You were cheating on me, and every time I found out,
you beat the royal hell out of me, and it wasn't me that
was cheating. It was you. I don't get it. "I'm
sorry" or "It's never going to happen again,
" or "I understand what I did."

[Father]: Okay. I'm supposed to tell you that whenever
I'm sitting here in a goddamn cell and I've got to
Washington County for some more [charges]?

Huh? Yeah. That's a real good thank you.

[Mother]: No. It's called - whenever I found out that you
were talking to other chicks instead of whipping the ...

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